By Albert Chen

The Voice of Holland produced by Telpa Distribution (the “Telpa”) has gained a great success soon after its publication, and then the program format was it was licensed to many countries so we can see The Voice of US, The Voice of Australia and other series programs. With the show introduced by Zhejiang TV and Canxing Company to China, The Voice series also gets to be well-known among the local public and gains a success too.

The most highlight of The Voice is its program format, and unlike other equivalents, the judge of The Voice could not see the participants until they press the button to turn to the singer, which also means they admire the performance by the participant who shall thereby have the chance to choose one of the judges to be his/her mentor on the singing. Such a show mode is refreshing to the local audiences who have been bored with the past talent shows.

To protect the eye-catching program format, before the launch of the show in China, Telpa sent lawyer’s letter to the claimed copycats in China, like CCTV’s “Feichang 6+1”, demanding the stop broadcast of the similar shows from 12th July, namely 1 day before the official launch of The Voice of China. Then could such claims be supported by China Copyright Law, and are there any other methods for the format protection? The followings are my analysis:

I. Copyright protection

There’s no doubt that The Voice of China has many parts which could be works on the law for their originality, like the songs, logo and each episode of the show.

Moreover, the lighting as well as the comments of the judges could be the works on law in some situations. Generally, the lighting is following a set method and rule, which leave little space for the originality. Yet, once the lighting could break the normal ways and create a special effect, like 3D light show, it surely could be the works in the Copyright Law. On the other hand, the comments of the judge could also be the oral works when it is original and adequate in length.

However, even with so much copyrighted works in it, the format of the show is after all only an idea or method, which could not be protected by copyright law as a basic principle for the avoidance of the monopoly on ideas. And the law only protects the expression of that idea. And this principle has been globally adopted and even in those countries like UK or USA who adopt a relative loosen rule on the protection of works, the domestic legislature there also does not protect the ideas.

For this reason, when distinguishing the program format and the contents of the format, Telpa’s claim of copyright infringement is not sound on copyright law. And in fact, we have seen similar cases in China, Hunan TV who has the license from Fremantle and broadcasted the Chinese version “Take Me Out” accused Zhejiang TV’s similar show a copycat, and report to the State Administration of Radio, Film and Television, yet so far we have seen no settlement of the dispute and both programs are on are on the TVs. By the way, the Copyright Office is the administrative department of copyright issues in China, and Hunan’s report could also explain the confusion and mess in the actual administrative management.

II. Patent protection 

Maybe say instead: “In practice, the un-copyrighted methods or ideas could be protected by patent law, but could the TV format be protected through the same way?”

The most related protectable articles in patent law to the TV format are the method invention, but compared with the copyright law, a more rigorous standard is adopted by the patent law, which will examine the creativity, novelty and practical use of the applied articles. By Article 22 of the Chinese Patent Law, in addition to the practical use, the format of The Voice of China may have obstacles on the determination of the utility and creativity.

For the utility, it demands:

“not an existing method; no patent application is filed by any unit or individual for any identical invention or utility model with the patent administration department under the State Council before the date of application for patent right, and no identical invention or utility model is recorded in the patent application documents or the patent documentations which are published or announced after the date of application.”

Despite no first broadcast of The Voice series, with the transmission of the internet, the format of it is not difficult to be known by Chinese audiences, or at least they have the chances to get the show. Furthermore, similar shows’ broadcast in China has made The Voice lose its utility.

On the other hand, there also remain doubts about the creativity of the TV format. By the patent law, creativity shall be with substantive features and indicate remarkable advancements. The substantive features demand the method supersedes the current methods, and could not be directly acquired through the logical analysis, detection or experiment. And the remarkable advancements refer to the apparent social and economic benefit thereby produced. No one could deny the fresh new model brought by The Voice, and the economic value of it, but that does not mean it could meet the statutory demands of creativity.

III. The anti-unfair competition protection 

By Paragraph 2 of Article 5 of Anti Unfair Competition Law of China,

“using, without authorization, the name, packaging or decoration peculiar to well-known goods or using a name, packaging or decoration similar to that of well-known goods, so that his goods are confused with the well-known goods of another person, causing buyers to mistake them for the well-known goods of the other person;”

Although there is no conclusion whether the show shall be the goods in law, considering its value and changeability as well as the transaction made in practices, I prefer to take it as kind of goods with a special format.

Therefore, basing on the above definitions, the precondition of the anti-unfair law application is: 1) the reputation of the infringed program, which shall be a noted goods; 2) the similarity of the infringing programs to the infringed one, involving show name, format, platform design, etc; 3) the confusion thereby produced between the programs.

However, when strictly following the above definition, The Voice of China seems to have little chance of gaining legal protection based on its current format, for the following reasons:

First, there’re doubts about the title of reputed goods of The Voice, for (In this context, instead of ‘for’, you could say: “because only’) after the broadcast of The Voice of China did local audiences get to know the program, and therefore no social reputation could be established then. On the other side, CCTV’s Feichang 6+1 first went on the air and afterwards won a good reputation. So who infringes who then? Last, despite the similar formats, the elements in the shows, including platform design or propaganda material are quite different from each other, and therefore the public is hardly to get confused with them.

Although the anti unfair competition way is not applicable to The Voice of China, that does not mean it could not be the legal ground for other shows’ protection. Once the show meets the above conditions, the law could be referred to for its protection.

IV. Trademark protection 

The other possible protection way is the trademark registration. In the The Voice series, we could see the signal of “a hand in V gesture and with a microphone”, that signal could be registered as a trademark, yet the registration may also face the following defects:

1. Any phrases with “China” could not be part of the registered trademark by China laws, and therefore only The Voice could be passed.

2. The trademark registration could only bring the legal protection on the signal with the program contents or format excluded. And in fact, few competitors will copy the signal of the other shows.

In conclusion, the only feasible way to protect the TV format is the anti-unfair competition, besides that the format could not be protected by the copyright law for it is just kind of ideas, and the format could not constitute the invention of a method either, and meanwhile to register the logo of the show could only protects the signal itself and has no other practical meaning. In fact the legislature vacancy or vagueness is not the only problem in China, so far we have seen few successful cases for the protection of TV format global wide. But with more and more dispute emerged in the future, I believe such problems could be solved soon.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

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